The Volokh Conspiracy
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First Amendment Protects Right to Livestream Police Stops
From Sharpe v. Winterville Police Dep't, decided today by Judge Julius Richardson, joined by District Judge Michael Nachmanoff:
This case asks whether a town's alleged policy that bans video livestreaming certain interactions with law enforcement violates the First Amendment…. Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental interests to survive First Amendment scrutiny….
[T]he alleged policy restricts … protected speech. Creating and disseminating information is protected speech under the First Amendment. "'[A] major purpose of' the First Amendment 'was to protect the free discussion of governmental affairs.'" … [T]hese principles extend the First Amendment to cover recording—particularly when the information involves matters of public interest like police encounters…. "The act[ ] of … recording videos [is] entitled to First Amendment protection because [it is] an important stage of the speech process that ends with the dissemination of information about a public controversy." … Recording police encounters creates information that contributes to discussion about governmental affairs. So too does livestreaming disseminate that information, often creating its own record. We thus hold that livestreaming a police traffic stop is speech protected by the First Amendment.
But not all regulation of protected speech violates the First Amendment. The burden now flips to Defendants. And the Town's speech regulation only survives First Amendment scrutiny if Defendants demonstrate that: (1) the Town has weighty enough interests at stake; (2) the policy furthers those interest; and (3) the policy is sufficiently tailored to furthering those interests….
The Town purports to justify the policy based on officer safety. According to Defendants, livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter. They support this claim by arguing, with help from amici, that violence against police officers has been increasing—including planned violence that uses new technologies. On Defendants' view, banning livestreaming prevents attacks or related disruptions that threaten officer safety.
This officer-safety interest might be enough to sustain the policy. But on this record we cannot yet tell. There is "undoubtedly a strong government interest" in officer safety. And risks to officers are particularly acute during traffic stops. But even though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw. So we cannot conclude, at this stage, that the policy survives First Amendment scrutiny….
Judge Paul Niemeyer disagreed in part:
[T]he issues in this case arose in the context of a lawful Fourth Amendment seizure—a traffic stop—during which a person seized refused to obey the order of law enforcement officers to cease using a cell phone to communicate with others during the course of the stop. The restriction on cell-phone use was thus an aspect of the seizure, and therefore the lawfulness of the restriction is regulated by the Fourth Amendment and its jurisprudence recognizing that, when conducting traffic stops, law enforcement officers may intrude on the liberty interests of those who have been stopped, so long as the intrusion is reasonable.
The issue therefore should be restated, I submit, to whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others. This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion, which is whether restrictions on electronic communications of persons detained are justified under a traditional, free-standing First Amendment analysis. While the two analyses might, but need not, lead to the same conclusion, I believe that we should apply the reasonableness test of the Fourth Amendment because the restrictions about which the plaintiff complains were imposed as a part of a lawful Fourth Amendment seizure….
The factual context is routine but is important to demonstrate my point. On October 9, 2018, Officer William Ellis and Officer Helms conducted a lawful traffic stop of a vehicle driven by Juankesta Staton, in which Dijon Sharpe was a passenger. At the beginning of the stop, Sharpe, as alleged in his complaint, "turned on the video recording function of his smartphone and began livestreaming—broadcasting in real-time—via Facebook Live to his Facebook account," which reached a live audience and provoked live responses. One viewer posted, "Be Safe Bro!" and another asked, "Where y'all at." Other comments included "SWINE" and "They don't like you Dijon." Those viewing the livestream could hear Staton say that the police had been following them for some time and that they had been racially profiled—that the officers had "seen two black people, and … [t]hey thinking drug dealer…. That's called harassment."
During the stop, Officer Helms told Sharpe, "We ain't gonna do Facebook Live, because that's an officer safety issue." At the same time, he attempted to grab Sharpe's phone, but Sharpe moved it further inside the vehicle, out of Helms's reach, and stated, apparently to his Facebook Live audience, "Look at your boy. Look at your boy." Officer Ellis then addressed Sharpe's livestreaming, stating to both Staton and Sharpe, "In the future, guys, this Facebook Live stuff, … we're not gonna have, okay, because that lets everybody y'all follow on Facebook [know] that we're out here. There might be just one [officer] next time … [and] [i]t lets everybody know where y'all are at. We're not gonna have that." Officer Ellis continued, "If you were recording, that is just fine…. We record, too," but "in the future, if you're on Facebook Live, your phone is gonna be taken from you, … [a]nd if you don't want to give up your phone, you'll go to jail." When Staton explained that Sharpe was using Facebook Live because they didn't "trust … cops," Officer Ellis sympathized with the concerns, but nonetheless reiterated, "[Y]ou can record on your phone … but Facebook Live is not gonna happen." …
In this case, Officer Helms and Officer Ellis … invoked "officer safety" as the reason why they sought, during the stop, to prohibit Sharpe from livestreaming while the stop was ongoing. Providing further explanation as to why it was reasonable for him to perceive officer safety as being implicated, Officer Helms asserts that livestreaming "add[s] additional hazards" to traffic stops by "allow[ing] anyone watching"—an unknown but potentially large number of people—"to know where an officer is and what he or she is doing in real time."
In this manner, he contends, livestreaming via a platform like Facebook Live by someone inside a stopped vehicle has a unique capacity to "turn a routine traffic stop into a crowd-control operation, leaving the officer in an unsafe position." But what was not clearly known to Officer Helms was whether his efforts to prohibit livestreaming during a traffic stop for officer safety violated Sharpe's First Amendment rights. Indeed, no one has cited any case that addresses such conduct—whether in the Fourth Amendment context or, for that matter, in the First Amendment context. In the absence of such law, Officer Helms was entitled to qualified immunity, as the majority opinion holds, albeit following a different analysis.
The majority opinion applies a free-standing First Amendment analysis to the communication restriction, focusing on but a component of the seizure without addressing the seizure itself and its implication of the Fourth Amendment. Thus, with its narrower focus, the opinion states that "livestreaming a police traffic stop is speech protected by the First Amendment," such that the burden shifts to the police officer to show that he had "weighty enough interests at stake," the prohibition "furthers those interests," and the prohibition is "sufficiently tailored to furthering those interests." … If the opinion were to recognize the Fourth Amendment context based on the overall activity involved, it would have articulated a Fourth Amendment analysis that would determine—somewhat different from the narrower First Amendment analysis—whether the restriction on livestreaming was "reasonable." And this approach would be the traditional one taken. When, during a lawful seizure, an officer demands identification, or orders a passenger to get out of the vehicle and remain at a distance from the driver, or orders an occupant to hand over a firearm temporarily during the stop—arguably implicating the First and Second Amendments, respectively—courts traditionally conduct a Fourth Amendment analysis to determine whether the restrictions on otherwise protected conduct are reasonable.
While the majority opinion's free-standing First Amendment analysis might, but need not, ultimately lead to the same result, the Fourth Amendment analysis is grounded on a straightforward concept of reasonableness. And therefore in this case, the question would ultimately be whether prohibiting livestreaming by persons seized during traffic stops was reasonable, regardless of whether the restriction was imposed by individual officers or by town policy….
All three judges agreed that the police officers were protected by qualified immunity, since the relevant law had not been clearly established. Congratulations to Andrew Tutt (Arnold & Porter Kaye Scholer LLP), who represents plaintiff.